NYC-Resistoroffshoot and a generally speaking cool company MakerBot Industries has caused a sudden uproar which seems not to subside. MakerBot has introduced two new successors in their Replicator series of 3D-printers, the Replicator 2 and the Replicator 2X, that for the first time in MakerBot history are not open hardware. Probably not coincidentally, people started to notice that Thingiverse, the online repository of 3D-designs which is also run by MakerBot Industries had changed its terms of use last February. I will quote the bit that has caused quite an uproar in verbatim:

3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to Company and its affiliates and partners, an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

The relevant bit of the old terms of use read as follows:

However, by posting, uploading, inputting, providing or submitting your content to Thingiverse.com, you are granting Thingiverse.com, its affiliated companies and partners, a worldwide, revocable, royalty-free, non-exclusive, sub-licensable license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute and publish that content for the purposes of displaying that content on Thingiverse.com and on other Web sites, devices and/or platforms.

The significant difference being that in the old terms of use the license had a limited scope, ‘use, reproduce, create derivative works of, display, transfer, transmit, distribute and publish’ , being the operatives. As a lawyer I tend to struggle with the application of copyright notions to open hardware, but precisely because open hardware and copyright are a poor match, the scope of this license was very much limited to Thingiverse-like platforms. As Bre Pettis wrote in his earlier blog on the change of the terms of use: this bit was probably nicked from the YouTube terms of use or those of a similar content-sharing platform. The net result was that this caused an inadvertent limitation on MakerBot Industries ability to incorporate stuff uploaded to Thingiverse in non-free open hardware products. Because selling a 3D-printer most likely does not fall within the scope of ‘the purpose of displaying that content..’, the newer terms of use however allow for such a thing.

Now these are both decidedly moves away from the openness that MakerBot was evangelizing in the past. Josef Prusa, of RepRap fame, has already started a Occupy Thingiverse movement and others in the community have responded so unfavourably that Bre Pettis, MakerBot Industries CEO and figurehead felt compelled to write a blog titled ‘fixing misinformation with information’ about it. In which he provides an argument that boils down “we haven’t figured out yet how to kick-start a hardware company with venture capital and remaining fully open at the same time. But trust us, we’ll be as open as possible, whatever ‘possible’ means”. Which is about as tangible as Mitt Romney’s promises for the policies he’ll enact when elected president. Mind you, this section 3.2 of the Thingiverse terms of use is comparable to what is known in free and open software circles as a contribution license agreement. There are are all sorts of ways and purposes for which these are used and having been part of an effort to harmonize these I won’t say it is an inherently evil thing to do.

What is less-than-awesome is the way both changes have been enacted by MakerBot Industries. It is one thing to publicly announce that you’re having to compromise on openness because building an open hardware business model is still pretty much uncharted territory and that you’re moving back to some enclosure and also stating what your goals for future openness are. It is another thing to do kind of omit it in the fanfare surrounding the launch of a new generation of your products, a new generation whose polish was made possible to a significant extent by all the people willing to put up with all the quirks, bugs and sometimes outright braindead engineering decisions embodied in your earlier generations, just because an open 3D-printing future is awesome.

It is outright underhanded to use the same legal tricks outright evil companies such as Facebook and Apple use for the terms of use of a website you awesomely started to create an ecosystem to change the playing field that you can reuse the fruits of other people’s labour and creativity in any way you see fit. Again, you could have announced that due to the different economics of tangible goods versus those of pure information, you’ll need to be able to do stuff that is not necessarily congruent with openness. If done so in advance, the uproar could possibly be equally as bad, but would eventually subside. Especially if you made it clear that if you were actually using a design contributed by a Thingiverse user, you’d be reimbursing them. In fact, MakerBot has already done so, without even being obliged to do so. So if you are already doing something that is acceptable, why not be transparant about it? Because that is what it all boils down: MakerBot betrayed the massive amount of trust it had and makes it worse by telling the community which calls it out for it to trust it even more. And this is what really baffles me. The world of open source is littered with projects that collapsed after a major actor in that community decided to enclose it. Who remembers Mambo? The fork away from OpenOffice.org to LibreOffice because none trusts Oracle? The current forks of MySQL, for precisely the same reason? Or closer to home, Junior Veloso who pulled a similar stunt resulting inbeing overtaken by B9Creator? MakerBot explicitly set out to create a community-based ecosystem, both on the 3D-printer hardware side and the 3D-design side of things. Put a massive effort into that, especially communication. And it is all being thrown away. With platforms like Github available, a Thingiverse contender can easily be created. And then what? MakerBot Industries still won’t have the control it apparantly craved and nothing to show for it to its venture capital funders. I just don’t get it. For now I’ll steer clear from Thingiverse and will suggest others to do the same.

(Updated after the break)

In the meantime MakerBot Industries’ lawyer, Richard McCarthy. has chimed in on both the MakerBot and Thingiverse blogs. Also there has been a bit of discussion on the Hackerspaces.org general discussion list about this subject. But first Richard McCarthy’s blog:

Unless my English reading comprehension is failing (which is quite possible, it is not my first language), Richard is basically confirming what I earlier thought: that this was always the intention of the Thingiverse terms of use to begin with. At least, that is what I get when Richard refers to standard industry practices. Because that is precisely what YouTube and all the other user generated content aggregators do: take more than they give. Nothing new there and nothing particularly evil, unless you’re completely naive. Richard then goes on to claim that further use beyond the Thingiverse website itself would be governed by the secondary license. He however does not explains why a primary license is needed in the first place, given the permissions of the secondary licenses you get to chose from. My reading of the primary license still stands: MakerBot Industries gets to use your design on a royalty-free basis for about anything they chose to use it for.

As far as I am concerned the whole discussion on moral rights is actually nowhere near as relevant as others think it is and at least Richard’s take on it is not grounded in the law. Moral rights do apply in the USA per the Berne Convention. That the US courts still tend to ignore them is a different matter altogether. I also do not think that most, if not all moral rights are actually tenable in an open hardware context. Including the right of attribution. Basically after a certain chain of derivations, there is no point to acknowledging the creator of the initial part of the chains.

A worthwhile read on the whole saga is Matt Joyce’s blogpost. Matt expresses much better than I can ever do how understandable such a move can be. It is not that I have a disagreement with that. Just that there is a sense of betrayal. It is time for a successor of Thingiverse.

[...] think with the replicator 2, a rubicon has been crossed. I think most people would be very quick to point out that several have been crossed. The most talked about of course is the deviation of Makerbot from a [...]